The applicant was an American serviceman who was based in Germany and was a helicopter maintenance mechanic. After being ordered to go to Iraq, he claimed asylum in Germany because he considered the war there to be illegal and giving rise to war crimes. He claimed, in essence, that because of his refusal to perform military service in Iraq, he was at risk of criminal prosecution and that, desertion being a serious offence in the United States, it affected his life by putting him at risk of social ostracism in his country. His application was rejected by the German authorities which referred a number of questions to it concerning the interpretation of Article 9 of the Qualification Directive, concerning what constitute “acts of persecution.”
The Court of Justice of the European Union (CJEU) held that Article 9(2)(e) of the Qualification Directive was to be interpreted as meaning that it covered all military personnel, including logistical or support personnel; it concerned the situation in which the military service performed would itself include, in a particular conflict, the commission of war crimes, even where the applicant would participate only indirectly in the commission of such crimes as long as it was reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes; and it concerned not only situations in which it had been established that war crimes had already been committed or were such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the applicant could establish that it was highly likely that such crimes would be committed.
It held that the factual assessment which it was for the national authorities alone to carry out, under the supervision of the courts, in order to determine the situation of the military service concerned, had to be based on a body of evidence capable of establishing that the situation in question made it credible that the alleged war crimes would be committed. The possibility that military intervention was engaged upon pursuant to a mandate of the United Nations Security Council or on the basis of a consensus on the part of the international community or that the state or states conducting the operations prosecuted war crimes were circumstances which had to be taken into account in the assessment being carried out by the national authorities. The refusal to perform military service had to constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes, and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9(2)(e) was excluded, unless he could prove that no procedure of that nature would have been available to him in his specific situation.
Article 9(2)(b) and (c) of the Qualification Directive was to be interpreted as meaning that, in circumstances such as those in the proceedings, it did not appear that the measures incurred by a soldier because of his refusal to perform military service, such as the imposition of a prison sentence or discharge from the army, could be considered to be so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions, having regard to the legitimate exercise, by his state, of its right to maintain an armed force. It was, however, for the national authorities to ascertain whether that was indeed the case.
The CJEU remitted the matter to the German court to apply its national law in the light of its ruling.